353 U.S.

23277 S.Ct. 7521 L.Ed.2d 796

Rudolph SCHWARE, Petitioner,

v.BOARD OF BAR EXAMINERS OF THE STATE OF NEWMEXICO.No. 92.Argued Jan. 14, 15, 1957.Decided May 6, 1957.

Mr. Herbert Monte Levy, New York City, for the petitioner.Mr. William A. Sloan, Albuquerque, N.M., for the respondent.Mr. Fred M. Standley, Clovis, N.M., for the respondent.Mr. Justice BLACK delivered the opinion of the Court.

The question presented is whether petitioner, Rudolph Schware, has been

denied a license to practice law in New Mexico in violation of the Due ProcessClause of the Fourteenth Amendment to the United States Constitution.

New Mexico has a system for the licensing of persons to practice law similar tothat in effect in most States.1 A Board of Bar Examiners determines ifcandidates for admission to the bar have the necessary qualifications. When theBoard concludes that an applicant qualifies it recommends to the State SupremeCourt that he be admitted. If the court accepts the recommendation, theapplicant is entitled to practice law upon taking an oath to support theconstitutions and laws of the United States and New Mexico. An applicantmust pass a bar examination before the Board will give him itsrecommendation. The Board can refuse to permit him to take this examinationunless he demonstrates that he has 'good moral character.'

In December 1953, on the eve of his graduation from the University of NewMexico School of Law, Schware filed an application with the Board of Bar

Examiners requesting that he be permitted to take the bar examination

scheduled for February 1954. His application was submitted on a formprescribed by the Board that required answers to a large number of questions.From the record, it appears that he answered these questions in detail. Amongother things, he disclosed that he had used certain aliases between 1933 and1937 and that he had been arrested on several occasions prior to 1940. When heappeared to take the examination, the Board informed him that he could not doso. He later requested a formal hearing on the denial of his application. TheBoard granted his request. At the hearing the Board told him for the first timewhy it had refused to permit him to take the bar examination. It gave him acopy of the minutes of the meeting at which it had voted to deny hisapplication. These minutes read:4

'No. 1309, Randolph Schware. It is moved by Board Member Frank Andrews

that the application of Rudolph Schware to take the bar examination be deniedfor the reason that, taking into consideration the use of aliases by the applicant,his former connection with subversive organizations, and his record of arrests,he has failed to satisfy the Board as to the requisite moral character foradmission to the Bar of New Mexico. Whereupon said motion is duly secondedby Board Member Ross L. Malone, and unanimously passed.'2

At the hearing petitioner called his wife, the rabbi of his synagogue, a localattorney and the secretary to the dean of the law school to testify about hischaracter.3 He took the stand himself and was thoroughly examined under oathby the Board. His counsel introduced a series of letters that petitioner hadwritten his wife from 1944 through 1946 while he was on duty in the Army.Letters were also introduced from every member of petitioner's law schoolgraduating class except one who did not comment. And all of his law schoolprofessors who were then available wrote in regard to his moral character. TheBoard called no witnesses and introduced no evidence.

The record of the formal hearing shows the following facts relevant toSchware's moral character. He was born in a poor section of New York City in1914 and grew up in a neighborhood inhabited primarily by recent immigrants.His father was an immigrant and like many of his neighbors had a difficult timeproviding for his family. Schware took a job when he was nine years old andthroughout the remainder of school worked to help provide necessary incomefor his family. After 1929, the economic condition of the Schware family andtheir neighbors, as well as millions of others, was greatly worsened. Schwarewas then at a formative stage in high school. He was interested in andenthusiastic for socialism and trade-unionism as was his father. In 1932,despairing at what he considered lack of vigor in the socialist movement at a

time when the country was in the depths of the great depression, he joined theYoung Communist League.4 At this time he was 18 years old and in the finalyear of high school.7

From the time he left school until 1940 Schware, like many others, wasperiodically unemployed. He worked at a great variety of temporary and illpaying jobs. In 1933, he found work in a glove factory and there he participatedin a successful effort to unionize the employees. Since these workers wereprincipally Italian, Schware assumed the name Rudolph Di Caprio to forestallthe effects of anti-Jewish prejudice against him, not only in securing andretaining a job but in assisting in the organization of his fellow employees. In1934 he went to California where he secured work on the docks. He testifiedthat he continued to use the name Rudolph Di Caprio because Jews werediscriminated against in employment for this work. Wherever Schware wasemployed he was an active advocate of labor organization. In 1934 he took partin the great maritime strikes on the west coast which were bitterly fought onboth sides. While on strike in San Pedro, California, he was arrested twice on'suspicion of criminal syndicalism.' He was never formally charged nor triedand was released in each instance after being held for a brief period. Hetestified that the San Pedro police, in a series of mass arrests jailed largenumbers of the strikers.

At the time of his father's death in 1937 Schware left the Communist Party butlater he rejoined. In 1940 he was arrested and indicted for violating theNeutrality Act of 1917. He was charged with attempting to induce men tovolunteer for duty on the side of the Loyalist Government in the Spanish CivilWar. Before his case came to trial the charges were dismissed and he wasreleased. Later in 1940 he quit the Communist Party. The Nazi-Soviet NonAggression Pact of 1939 had greatly disillusioned him and this disillusionmentwas made complete as he came to believe that certain leaders in the Party wereacting to advance their own selfish interests rather than the interests of theworking class which they purported to represent.

In 1944 Schware entered the armed forces of the United States. While in theservice he volunteered for duty as a paratrooper and was sent to New Guinea.While serving in the Army here and abroad he wrote a number of letters to hiswife. These letters show a desire to serve his country and demonstrate faith in afree democratic society. They reveal serious thoughts about religion which laterled him and his wife to associate themselves with a synagogue when hereturned to civilian life. He was honorably discharged from the Army in 1946.

10

After finishing college, he entered the University of New Mexico law school in

10

1950. At the beginning he went to the dean and told him of his past activitiesand his association with the Communist Party during the depression and askedfor advice. The dean told him to remain in school and put behind him what hadhappened years before. While studying law Schware operated a business inorder to support his wife and two children and to pay the expenses of aprofessional education. During his three years at the law school his conductwas exemplary.

11

At the conclusion of the hearing the Board reaffirmed its decision denyingSchware the right to take the bar examination. He appealed to the New MexicoSupreme Court. That court upheld the denial with one justice dissenting. 60N.M. 304, 291 P.2d 607, 630. In denying a motion for rehearing the courtstated that:

12

'(Schware's membership in the Communist Party), together with his other

former actions in the use of aliases and record of arrests, and his presentattitude toward those matters, were the considerations upon which (weapproved the denial of his application).'

13

Schware then petitioned this Court to review his case alleging that he had beendenied an opportunity to qualify for the practice of law contrary to the DueProcess Clause of the Fourteenth Amendment. We granted certiorari. 352 U.S.821, 77 S.Ct. 34, 1 L.Ed.2d 46. Cf. In re Summers, 325 U.S. 561, 562, 564 569,65 S.Ct. 1307, 1308, 1309, 1312, 89 L.Ed. 1795. And see Konigsberg v. StateBar of California, 353 U.S. 252, 77 S.Ct. 722.

14

A State cannot exclude a person from the practice of law or from any otheroccupation in a manner or for reasons that contravene the Due Process or EqualProtection Clause of the Fourteenth Amendment.5 Dent v. State of WestVirginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. Cf. Slochower v. Board ofHigher Education, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692; Wieman v.Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216. And see Ex parteSecombe, 19 How. 9, 13, 15 L.Ed. 565. A State can require high standards ofqualification, such as good moral character or proficiency in its law, before itadmits an applicant to the bar, but any qualification must have a rationalconnection with the applicant's fitness or capacity to practice law. Douglas v.Noble, 261 U.S. 165, 43 S.Ct. 303, 67 L.Ed. 590; Cummings v. State ofMissouri, 4 Wall. 277, 319320, 18 L.Ed. 356. Cf. Nebbia v. People of Stateof New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940. Obviously anapplicant could not be excluded merely because he was a Republican or aNegro or a member of a particular church. Even in applying permissiblestandards, officers of a State cannot exclude an applicant when there is no basis

for their finding that he fails to meet these standards, or when their action isinvidiously discriminatory. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct.1064, 30 L.Ed. 220.15

Here the State concedes that Schware is fully qualified to take the examinationin all respects other than good moral character. Therefore the question iswhether the Supreme Court of New Mexico on the record before us couldreasonably find that he had not shown good moral character.

16

There is nothing in the record which suggests that Schware has engaged in anyconduct during the past 15 years which reflects adversely on his character. TheNew Mexico Supreme Court recognized that he 'presently enjoys good reputeamong his teachers, his fellow students and associates and in his synagogue.'Schware's professors, his fellow students, his business associates and the rabbiof the synagogue of which he and his family are members, all gave testimonythat he is a good man, a man who is imbued with a sense of deep responsibilityfor his family, who is trustworthy, who respects the rights and beliefs of others.From the record it appears he is a man of religious conviction and is traininghis children in the beliefs and practices of his faith. A solicitude for others isdemonstrated by the fact that he regularly read the Bible to an illiterate soldierwhile in the Army and law to a blind student while at the University of NewMexico law school. His industry is depicted by the fact that he supported hiswife and two children and paid for a costly professional education by operatinga business separately while studying law. He demonstrated candor byinforming the Board of his personal history and by going to the dean of the lawschool and disclosing his past. The undisputed evidence in the record showsSchware to be a man of high ideals with a deep sense of social justice. Not asingle witness testified that he was not a man of good character.

17

Despite Schware's showing of good character, the Board and court belowthought there were certain facts in the record which raised substantial doubtsabout his moral fitness to practice law.

18

(1) Aliases.From 1934 to 1937 Schware used certain aliases. He testified thatthese aliases were adopted so he could secure a job in businesses whichdiscriminated against Jews in their employment practices and so that he couldmore effectively organize non-Jewish employees at plants where he worked. Ofcourse it is wrong to use an alias when it is done to cheat or defraud another butit can hardly be said that Schware's attempt to forestall anti-semitism insecuring employment or organizing his fellow workers was wrong. He did givean assumed name to police in 1934 when he was picked up in a mass arrestduring a labor dispute. He said he did this so he would not be fired as a striker.

This is certainly not enough evidence to support an inference that petitioner hasbad moral character more than 20 years later.19

(2) Arrests.In response to the questions on the Board's application form

Schware stated that he had been arrested on several occasions:

20

1. In 1934, while he was participating in a bitter labor dispute in the California

shipyards, petitioner was arrested at least two times on 'suspicion of criminalsyndicalism.' After being held for a brief period he was released without formalcharges being filed against him. He was never indicted nor convicted for anyoffense in connection with these arrests.

21

The mere fact that a man has been arrested has very little, if any, probativevalue in showing that he has engaged in any misconduct.6 An arrest showsnothing more than that someone probably suspected the person apprehended ofan offense. When formal charges are not filed against the arrested person andhe is released without trial, whatever probative force the arrest may have had isnormally dissipated. Moreover here, the special facts surrounding the 1934arrests are relevant in shedding light on their present significance. Apparentlygreat numbers of strikers were picked up by police in a series of arrests duringthe strike at San Pedro and many of these were charged with 'criminalsyndicalism.'7 The California syndicalism statutes in effect in 1934 were verybroad and vague.8 There is nothing in the record which indicates why Schwarewas arrested on 'suspicion' that he had violated this statute. There is nosuggestion that he was using force or violence in an attempt to overthrow thestate or national government. Again it should be emphasized that these arrestswere made more than 20 years ago and petitioner was never formally chargednor tried for any offense related to them.

22

2. In 1940 Schware was arrested for violating the Neutrality Act of 1917 whichmakes it unlawful for a person within the United States to join or to hire orretain another to join the army of any foreign state.9 He was indicted but beforethe case came to trial the prosecution dropped the charges. He had beencharged with recruiting persons to go overseas to aid the Loyalists in theSpanish Civil War. Schware testified that he was unaware of this old law at thetime. From the facts in the record it is not clear that he was guilty of itsviolation.10 But even if it be assumed that the law was violated, it does notseem that such an offense indicated moral turpitudeeven in 1940. Manypersons in this country actively supported the Spanish Loyalist Government.During the prelude to World War II many idealistic young men volunteered tohelp causes they believed right. It is commonly known that a number ofAmericans joined air squadrons and helped defend China and Great Britain

prior to this country's entry into the war. There is no record that any of thesevolunteers were prosecuted under the Neutrality Act. Few Americans wouldhave regarded their conduct as evidence of moral turpitude. In determiningwhether a person's character is good the nature of the offense which he hascommitted must be taken into account.1123

In summary, these arrests are wholly insufficient to support a finding that

Schware had bad moral character at the time he applied to take the barexamination.12 They all occurred many years ago and in no case was he evertried or convicted for the offense for which he was arrested.

24

(3) Membership in the Communist Party.Schware admitted that he was a

member of the Communist Party from 1932 to 1940. Apparently the SupremeCourt of New Mexico placed heavy emphasis on this part membership indenying his application.13 It stated:

25

'We believe one who has knowingly given his loyalties to (the CommunistParty) for six to seven years during a period of responsible adulthood is aperson of questionable character.' (60 N.M. 319, 291 P.2d 617.)

26

The court assumed that in the 1930's when petitioner was a member of theCommunist Party, it was dominated by a foreign power and was dedicated tothe violent overthrow of the Government and that every member was aware ofthis. It based this assumption primarily on a view of the nature and purposes ofthe Communist Party as of 1950 expressed in a concurring opinion in AmericanCommunications Ass'n v. Douds, 339 U.S. 382, 422, 70 S.Ct. 674, 695, 94L.Ed. 925. However that view did not purport to be a factual finding in that caseand obviously it cannot be used as a substitute for evidence in this case to showthat petitioner participated in any illegal activity or did anything morallyreprehensible as a member of that Party. During the period when Schware wasa member, the Communist Party was a lawful political party with candidates onthe ballot in most States.14 There is nothing in the record that gives anyindication that his association with that Party was anything more than apolitical faith in a political party. That faith may have been unorthodox. But ascounsel for New Mexico said in his brief, 'Mere unorthodoxy (in the field ofpolitical and social ideas) does not as a matter of fair and logical inference,negative 'good moral character."15

27

Schware joined the Communist Party when he was a young man during themidst of this country's greatest depression. Apparently many thousands of otherAmericans joined him in this step.16 During the depression when millions were

unemployed and our economic system was paralyzed many turned to theCommunist Party out of desperation or hope. It proposed a radical solution tothe grave economic crisis. Later the rise of fascism as a menace to democracyspurred others who feared this form of tyranny to align with the CommunistParty.17 After 1935, that Party advocated a 'Popular Front' of 'all democraticparties against fascism.' Its platform and slogans stressed full employment,racial equality and various other political and economic changes.1828

During the depression Schware was led to believe that drastic changes neededto be made in the existing economic system. There is nothing in the record,however, which indicates that he ever engaged in any actions to overthrow theGovernment of the United States or of any State by force or violence, or that heeven advocated such actions. Assuming that some members of the CommunistParty during the period from 1932 to 1940 had illegal aims and engaged inillegal activities, it cannot automatically be inferred that all members sharedtheir evil purposes or participated in their illegal conduct. As this Courtdeclared in Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 219, 97L.Ed. 216: 'Indiscriminate classification of innocent with knowing activity mustfall as an assertion of arbitrary power.' Cf. Joint Anti-Fascist RefugeeCommittee v. McGrath, 341 U.S. 123, 136, 71 S.Ct. 624, 630, 95 L.Ed. 817.19And finally, there is no suggestion that Schware was affiliated with theCommunist Party after 1940more than 15 years ago. We conclude that hispast membership in the Communist Party does not justify an inference that hepresently has bad moral character.

29

The State contends that even though the use of aliases, the arrests, and themembership in the Communist Party would not justify exclusion of petitionerfrom the New Mexico bar if each stood alone, when all three are combined hisexclusion was not unwarranted. We cannot accept this contention. In the lightof petitioner's forceful showing of good moral character, the evidence uponwhich the State reliesthe arrests for offenses for which petitioner was neithertried nor convicted, the use of an assumed name many years ago, andmembership in the Communist Party during the 1930'scannot be said to raisesubstantial doubts about his present good moral character. There is no evidencein the record which rationally justifies a finding that Schware was morally unfitto practice law.20

30

On the record before us we hold that the State of New Mexico deprivedpetitioner of due process in denying him the opportunity to qualify for thepractice of law. The judgment below is reversed and the case remanded forproceedings not inconsistent with this opinion.

31

It is so ordered.

32

Reversed and remanded with directions.

33

Mr. Justice WHITTAKER took no part in the consideration or decision of this

Certainly since the time of Edward I, through all the vicissitudes of sevencenturies of Anglo-American history, the legal profession has played a role allits own. The bar has not enjoyed prerogatives; it has been entrusted withanxious responsibilities. One does not have to inhale the self-adulatory bombastof after-dinner speeches to affirm that all the interests of man that arecomprised under the constitutional guarantees given to 'life, liberty andproperty' are in the professional keeping of lawyers. It is a fair characterizationof the lawyer's responsibility in our society that he stands 'as a shield,' to quoteDevlin, J., in defense of right and to ward off wrong. From a professioncharged with such responsibilities there must be exacted those qualities oftruth-speaking, of a high sense of honor, of granite discretion, of the strictestobservance of fiduciary responsibility, that have, throughout the centuries, beencompendiously described as 'moral character.' From the thirteenth century tothis day, in England the profession itself has determined who should enter it. Inthe United States the courts exercise ultimate control. But while we havenothing comparable to the Inns of Court, with us too the profession itself,through appropriate committees, has long had a vital interest, as a siftingagency, in determining the fitness, and above all the moral fitness, of those whoare certified to be entrusted with the fate of clients. With us too the requisite'moral character' has been the historic unquestioned prerequisite of fitness.Admission to practice in a State and before its courts necessarily belongs to thatState. Of course, legislation laying down general conditions of an arbitrary ordiscriminatory character may, like other legislation, fall afoul of the FourteenthAmendment. See Cummings v. State of Missouri, 4 Wall. 277, 18 L.Ed. 356. Avery different question is presented when this Court is asked to review theexercise of judgment in refusing admission to the bar in an individual case, suchas we have here.

36

It is beyond this Court's function to act as overseer of a particular result of the

procedure established by a particular State for admission to its bar. No doubtsatisfaction of the requirement of moral character involves an exercise of

delicate judgment on the part of those who reach a conclusion, having heardand seen the applicant for admission, a judgment of which it may be said as itwas of 'many honest and sensible judgments' in a different context that itexpresses 'an intuition of experience which outruns analysis and sums up manyunnamed and tangled impressions,impressions which may lie beneathconciousness without losing their worth.' Chicago, B. & Q.R. Co. v. Babcock,204 U.S. 585, 598, 27 S.Ct. 326, 329, 51 L.Ed. 636. Especially in this realm itis not our business to substitute our judgment for the State's judgmentfor it isthe State in all the panoply of its powers that is under review when the action ofits Supreme Court is under review.37

Nor is the division of power between this Court and that of the States in suchmatters altered by the fact that the judgment here challenged involves theapplication of a conception like that of 'moral character,' which has shadowyrather than precise bounds. It cannot be that that conceptionmoral characterhas now been found to be so indefinite, because necessarily implicating whatare called subjective factors, that the States may no longer exact it from thosewho are to carry on 'the public profession of the law.' (See Elihu Root, in 2A.B.A.J. 736.) To a wide and deep extent, the law depends upon the disciplinedstandards of the profession and belief in the integrity of the courts. We cannotfail to accord such confidence to the state process, and we must attribute to itscourts the exercise of a fair and not a biased judgment in passing upon theapplications of those seeking entry into the profession.

38

But judicial action, even in an individual case, may have been based on avowedconsiderations that are inadmissible in that they violate the requirements of dueprocess. Refusal to allow a man to qualify himself for the profession on awholly arbitrary standard or on a consideration that offends the dictates ofreason offends the Due Process Clause. Such is the case here.

39

Living under hard circumstances, the Petitioner, while still in his teens,encountered the confusions and dislocations of the great depression. By one ofthose chance occurrences that not infrequently determine the action of youth,petitioner joined the Young Communist League to-ward the end of his highschool days. That association led to membership in the Communist Party,which he retained until the Hitler-Stalin Pact began a disaffection that wascompleted by his break with the Party in 1940. After 1940, the record of hislife, including three years of honorable service in the army, establishes thatthese early associations, and the outlook they reflected, had been entirely leftbehind. 1 After his war service, three years as a small businessman, and oneyear at Western Michigan College, petitioner resolved on becoming a lawyer.And so in 1950, at the age of 36, he enrolled in the University of New Mexico

Law School and made full disclosure of his early Communist career to its Dean.These are the facts that, taken together with the use of aliases and arrestswithout conviction or even prosecution, both in his early years, led theSurpeme Court of New Mexico, in an original proceeding before it afteradverse action by the Board of Bar Examiners, to deny petitioner's applicationto take the bar examination.40

For me, the controlling element in determining whether such denial offendedthe Due Process Clause is the significance that the New Mexico Supreme Courtaccorded the early Communist affiliations. In its original opinion and in itsopinion on rehearing, the court thus reiterated its legal position:

41

'We believe one who has knowingly given his loyalties to such a program andbelief for six to seven years during a period of responsible adulthood is aperson of questionable character.' 60 N.M. 304, 319, 339, 291 P.2d 607, 617,630.

42

Since the New Mexico Supreme Court unequivocally held this to be a factorwithout which, on a fair reading of its opinion, it would not have denied theapplication, the conclusion that it drew from all the factors in necessarycombination must fall if it drew an unwarranted legal conclusion frompetitioner's early Communist affiliation. Not unnaturally the New MexicoSupreme Court evidently assumed that use of aliases in the pre-1940 period,several unprosecuted arrests, and what it deemed 'his present attitude towardthose matters,' 60 N.M. at page 339, 291 P.2d at page 630 (as drawn from theprinted record and not on the basis of having given the petitioner a hearingbefore the court) precluded denial of his application on these factors alone.

43

This brings me to the inference that the court drew from petitioner's early, pre1940 affiliations. To hold, as the court did, that Communist affiliation for six toseven years up to 1940, fifteen years prior to the court's assessment of it, in andof itself made the petitioner 'a person of questionable character' is so dogmatican inference as to be wholly unwarranted. History overwhelmingly establishesthat many youths like the petitioner were drawn by the mirage of communismduring the depression era, only to have their eyes later opened to reality. Suchexperiences no doubt may disclose a woolly mind or naive notions regardingthe problems of society. But facts of history that we would be arbitrary inrejecting bar the presumption, let alone an irrebuttable presumption, thatresponse to foolish, baseless hopes regarding the betterment of society madethose who had entertained them but who later undoubtedly came to their sensesand their sense of responsibility 'questionable characters.' Since the SupremeCourt of New Mexico as a matter of law took a contrary view of such a situation

in denying petitioner's application, it denied him due process of law.

44

I therefore concur in the judgment.

Generally, see N.M.Stat.Ann., 1953, 1818 and the Rules Governing

Admission to the Bar appended thereto.

Apparently the Board had received confidential information that Schware hadonce been a member of the Communist Party. The Board's application form didnot request disclosure of such information and so Schware did not mention it inhis application. At the hearing he testified at length about his membership. TheBoard refused to let petitioner see the confidential information against him,although it appears that its initial denial of his application was partially basedon this information. While this secret evidence was not made a part of therecord of the hearing, counsel for petitioner contends that the Board wasinfluenced by it in adhering to its view that petitioner was not qualified. In theNew Mexico Supreme Court the members of the majority did not look at theconfidential information. And while that court passed on petitioner'squalifications in the exercise of its original jurisdiction, the majority placedconsiderable reliance on the Board's recommendations. Therefore, petitionercontends, the Board's use of confidential information deprived him ofprocedural due process. Cf. Goldsmith v. United States Board of Tax Appeals,270 U.S. 117, 46 S.Ct. 215, 70 L.Ed. 494; Bratton v. Chandler, 260 U.S. 110,43 S.Ct. 43, 67 L.Ed. 157; Minkoff v. Payne, 93 U.S.App.D.C. 123, 210 F.2d689, 691; In re Carter, 89 U.S.App.D.C. 310, 192 F.2d 15, certiorari denied,342 U.S. 862, 72 S.Ct. 89, 96 L.Ed. 648. We find it unnecessary to consider thiscontention.

The dean was on sabbatical leave and not available.

At times during 1932 more than 12,060,000 of the nation's 51,000,000 workingpersons were unemployed. Statistical Abstract of the United States (1956) 197.

We need not enter into a discussion whether the practice of law is a 'right' or'privilege.' Regardless of how the State's grant of permission to engage in thisoccupation is characterized, it is sufficient to say that a person cannot beprevented from practicing except for valid reasons. Certainly the practice oflaw is not a matter of the State's grace. Ex parte Garland, 4 Wall. 333, 379, 18L.Ed. 366.

Arrest, by itself, is not considered competent evidence at either a criminal or

civil trial to prove that a person did certain prohibited acts. Cf. Wigmore,

Evidence, 980a.7

Petitioner testified that during a two-month period about 2,000 persons werearrested in connection with the strike. Generally, for criticism of these arrestsand the conduct of the police during these and related strikes see S.Rep. No.1150, 77th Cong., 2d Sess. 35, 131, 133141.

'The term 'criminal syndicalism' as used in this act is hereby defined as anydoctrine or precept advocating, teaching or aiding and abetting the commissionof crime, sabotage (which word is hereby defined as meaning wilful andmalicious physical damage or injury to physical property), or unlawful acts offorce and violence or unlawful methods of terrorism as a means ofaccomplishing a change in industrial ownership or control, or effecting anypolitical change.' Cal.Stat.1919, c. 188, 1.*See also De Jonge v. State ofOregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278, where application of asimilar statute was held unconstitutional.

40 Stat. 39, now 18 U.S.C. 959(a), 18 U.S.C.A. 959(a).

10

See Kiker, J. (dissenting), 60 N.M. 304, 321, 291 P.2d 607, 618.

Now West's Ann.Pen.Code, 11400.

11

For example, New Mexico makes conviction of a felony or a misdemeanor

grounds for disbarment only if it involves moral turpitude. N.M.Stat.Ann.,1953, 18117(1). Compare In re Burch, 73 Ohio App. 97, 54 N.E.2d 803,where, in a disbarment proceeding, conviction for violation of a federal statutefor failing to register as an agent of the German Government in 1941 was heldnot to evidence moral turpitude.

12

In 1941 Schware was arrested by police in Texas while driving a friend's car tothe west coast. Apparently the police suspected the car was stolen. After a briefdelay they became convinced that the car was rightfully in petitioner'spossession and he was allowed to go on his way. This detention offers no proofof bad moral character and the State does not rely on it here.

13

Petitioner argues that a State constitutionally cannot consider his membership

in a lawful political party in determining whether he is qualified for admissionto the bar. He contends that a denial based on such membership abridges theright of free political association guaranteed by the Fourteenth Amendment.Because of our disposition of this case, we find it unnecessary to pass on thiscontention.

14

For example in 1936 its presidential nominee was on the ballot in 35 States,

including New Mexico. Statistical Abstract of the United States (1937) 159.15

In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63S.Ct. 1178, 1187, 87 L.Ed. 1628, this Court declared:'If there is any fixed star in our constitutional constellation, it is that no official,high or petty, can prescribe what shall be orthodox in politics, nationalism,religion, or other matters of opinion or force citizens to confess by word or acttheir faith therein.'

16

According to figures of the Communist Party it had 14,000 members in 1932,

26,000 in 1934, 41,000 in 1936. W. Z. Foster, From Bryan to Stalin (1937),303. It has been estimated that more than 700,000 persons in this country havebeen members of the Communist Party at one time or another between 1919and 1951. Ernst and Loth, Report on The American Communist (1952), 14.

17

For the numerous and varied reasons why individuals have joined theCommunist Party, see Taylor, Grand Inquest (1955), 155 159; Ernst and Loth,Report on The American Communist (1954); Almond, The Appeals ofCommunism (1952); Crossman, The God That Failed (1949); Department ofDefense, Know Your Communist Enemy: Who Are Communists and Why?,DOD PAM 46, Dec. 8, 1955. Many of these reasons are not indicative of badmoral character.

18

See Moore, The Communist Party of the U.S.A.; An Analysis of a Social

Movement, 39 Am.Pol.Sci.Rev. 31, 3233.

19

And see Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333,1342, 87 L.Ed. 1796, where this Court stated:'* * * under our traditions beliefs are personal and not a matter of mereassociation, and that men in adhering to a political party or other organizationnotoriously do not subscribe unqualifiedly to all of its platforms or assertedprinciples.'

20

It must be borne in mind that if petitioner otherwise qualifies for the practice oflaw and is admitted to the bar, the State has ample means to discipline him forany future misconduct. N.M.Stat.Ann.1953, 18115 to 18118.

The only bit of evidence that may be adduced to the contrary is a single phrasein a letter to his wife in 1944. To give it an unfavorable and disqualifyingsignificance in the entire context of the letter is to draw so strained a meaningas to be inadmissibly unreasonable.